Tag Archives: Copyright Small Claims

DMLA Legal Blog: What is ahead for 2017

by Nancy Wolff, DMLA Counsel

2017 is off to a rapid start for the DMLA legal committee and team. In December DMLA, along with other visual artist associations, (American Photographic Artists, American Society of Media Photographers, Graphic Artists Guild, National Press Photographers Association, North American Nature Photography Association and Professional Photographers of America) attended the annual face to face meeting of visual artists’ associations to set the course of collaborative action for the coming year. This year’s meeting was in DC, and the changes at the Copyright Office; the House of Representatives Judiciary Committee’s Reform of the Copyright Office together with recent copyright small claims bills were priority topics.

In addition to strategizing on how to approach the above issues, we had a training session on lobbying, a meeting with Keith Kupferschmid, the CEO of the Copyright Alliance on participating in a search for a new register at the Copyright Office; discussions on whether the Copyright Office should move out of the Library of Congress; and a guest speaker, Rob Kasunic, Associate Register of Copyrights and Directors of Registration Practice Policy & Practice at the US Copyright Office. Specifically, Rob discussed a recently published notice of proposed rulemaking regarding group registration of photographs that will impact how published and unpublished photographs are registered as well as the database registrations employed by many DMLA members.

The day was full with many open items to work on in 2017, with several responses to requests for comments from the Copyright Office and the legislature due by the end of this January. This annual meeting is in addition to nearly weekly meetings DMLA participates in with these associations. Since last year when we anticipated proposed copyright small claims legislation, the associations have been in frequent communication to work swiftly and cohesively when the need arises. A lesson learned from the proposed Orphan Works legislation nearly ten years ago was that the visual artists’ community needs to speak with as unified a voice as possible with Congress and the Copyright Office if our message is to be heard and considered. DMLA represents the only association of licensing entities and our perspective is important in highlighting the economic importance of licensing and the need for a robust copyright system. The Legal Committee will be sending requests for action items on pending responses due this month so look out for updates and please participate as we need to hear from all members on these important issues!

 

 

DMLA Legal Update

By Nancy Wolff, DMLA Legal Counsel

NEWS FROM WASHINGTON

This past week was a busy week for DMLA. We had our annual in-person meeting with a number of visual art associations in Washington, DC last Tuesday. Thursday, the House of Representative’s Judiciary Committee released its first policy proposal to reform the Copyright Office after extensive review of the U.S. Copyright Act over the past few years. Also on Thursday Representatives Judy Chu and Lamar Smith introduced the Fairness for American Small Creators Act, a bill proposing as an alternative to federal court, a copyright small claims court within the Copyright Office.

In-Person Association Meeting

Since Congress attempted to pass orphan works legislation ten years ago, the heads and counsel of the visual arts related associations in the United States have met in-person each year to discuss mutual goals and issues. We’ve focused primarily with respect to the ongoing studies conducted by the Copyright Office on issues relating to visual images, registration and a copyright small claims as well as the House of Representative Judiciary Committee’s review of the U.S. Copyright Act. The importance of responding to Congress on these important issues with a more unified voice was a lesson learned during the orphan works legislation hearings in 2006. Although there are regular telephone meetings during the year to deal with ongoing issues, the annual meeting help shape the goals for the year and promotes unity. In addition to DMLA, the following associations participate in these meetings: American Association of Media Photographers (ASMP), Professional Photographers of America (PPA), National Press Photographers of America (NPPA), American Photographic Artists (APA), North American Nature Photographers Association (NANPA), the Graphic Artists Guild (GAG) and the Plus Coalition.

This year the annual meeting emphasized several hot topics, First, we focused on the replacement of Maria Pallante, the former register of the Copyright Office, who was summarily removed by the recently appointed Librarian of Congress on October 21, 2016 and had been sensitive to the issues of visual artists. Keith Kupferschmid, CEO of the Copyright Alliance, met with the group at lunch to discuss the selection process, as he knows it, and to work with us to suggest appropriate candidates. In addition, he also encouraged the various associations to support a survey currently being drafted by the Copyright Alliance to respond to a recent request from the Copyright Office for more data on Section 512 of the Copyright Act, concerning the effectiveness of the notice and take down process to remove infringing materials from Internet Service Providers.

Next, the continued support for a proposed copyright small claims court as an alternative to costly federal litigation was high on the agenda as well as modernizing the Copyright Office and improving registration of images. Many of the members had meetings on the Hill the remainder of the week to support Copyright Small Claims, organized by the PPA. In addition, Rob Kasunic, Associate Register of Copyrights and Director of Registration Practices at the Copyright Office, was invited to speak in the afternoon and he discussed the recent request -Notice of Inquiry (NOI) published by the Copyright Office seeking to limit group registration of photographs to 750 images. (More to come on that from the DMLA). Over the past months, the associations have had weekly calls regarding Copyright small claims legislation, which we intend to continue during the next year.

Thursday, December 8, House Judiciary Committee Chairman Bob Goodlatte and Ranking Member John Conyers released the first policy proposal to come out of the Committee’s review of U.S. Copyright law. The document states that the Copyright Office should remain a part of the Legislative Branch and continue to provide advice to Congress. Further, the Office should have autonomy over its budget and technology needs. It supported the Copyright Office’s plan for IT modernization with searchable, digital databases. Additionally, it recommended that the Office host a small claims system consistent with the Copyright Office report to handle low value infringement cases. Reps. Goodlatte and Conyers released a statement and video stating that these policies are a starting point for further discussion by all stakeholders, with the goal of producing legislative text within each issue area. The Committee requests written comments from interested stakeholders by January 31, 2017.

With respect to the small claims system, on the same day, Representatives Judy Chu and Lamar Smith introduced the Fairness for American Small Creators Act, a bill proposing, as an alternative to federal court, a small claims court within the Copyright Office for copyright infringement lawsuits. More information is available at here.

The DMLA Legal Committee is reviewing the recent requests for information from the Copyright Office ad Congress for information of Section 512, registration and copyright small claims. 2017 looks like it could be an active year. If any legislation on copyright modernization or small claims is ready to be voted on, it will be important for DMLA members (and their contributors) to show support. We will keep you informed.

First Small Claims Bill Introduced in Congress

Washington, D.C., July 14, 2016 – In the wake of its release of a white paper setting out the key components of a copyright small claims bill, a coalition of visual artist groups commends the attention that this critical issue is now garnering on Capitol Hill. Rep. Hakeem Jeffries’s (D-NY) introduction, along with original cosponsor Tom Marino (R-PA), of a bill, H.R. 5757 of a bill establishing a small claims board and the forthcoming introduction by Rep. Judy Chu (D-CA) of her own version of small claims legislation establishing a small claims tribunal in the Copyright Office, are a welcomed next step in a process that will hopefully result in much-needed legislative relief for photographers, photojournalists, videographers, illustrators, graphic designers, and other visual artists and their licensing representatives. These artists are currently squeezed out of the legal system by the high cost of bringing suit in federal court and have seen their licensing revenues decimated in recent years by the proliferation of copyright infringement, particularly in the online context.

We look forward to working with Representatives Jeffries, Chu and all members of Congress to correct this inequity in America’s copyright system.

Earlier this year, the coalition, which includes the American Photographic Artists (APA), American Society of Media Photographers (ASMP), Digital Media Licensing Association (DMLA), Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), North American Nature Photography Association (NANPA) and Professional Photographers of America (PPA), set forth recommendations with regard to key components in any forthcoming congressional small claims legislation.

Coalition members believe small claims reform to be their top legislative priority and call upon Congress to enact legislation that provides visual artists and other small creators with a viable, affordable alternative to prosecuting copyright infringement in federal court—a prohibitively expensive and little-used option by visual artists. This approach is largely consistent with the legislative recommendations set forth in the “Copyright Small Claims” report released in late 2013 by the U.S. Copyright Office which deserves much credit for its groundbreaking effort in this area.

Cathy Aron, Executive Director of the Digital Media Licensing Association (DMLA) said, “Our association supports the creation of a copyright small claims forum to encourage licensing of visual content from legitimate sources. A small claims court should help stem the tide of “right-click” image use as it offers content creators and their representatives a way to effectively enforce copyright and seek appropriate payment. The digital economy needs to work for all participants and this is an essential step forward.

A copy of the visual artists coalition’s white paper is available here.

For more information, please go to here or contact Lindsey Forson copyrightdefense@ppa.com

Copyright Review By Congress

By Nancy Wolff, DMLA Counsel, Cowan DeBaets Abrahams & Sheppard, LLP

The House Judiciary Committee began a comprehensive review of the current Copyright Act beginning in 2013.   It held 20 hearings and heard from 100 witnesses.

I testified in July 2014 at the hearing regarding copyright remedy in favor of a copyright small claim court as an alternative to federal court for claims of relatively lesser economic value. [A copy of the statement I submitted is [here]

The hearings ended earlier this year and the House Judiciary Committee invited the witnesses to return for individual meeting with the bipartisan committee staff.

On September 1, I met with Joe Keeley and David Greengrass, to discuss any updates to my testimony and other issues that affect members of DMLA and the visual arts community in general. One of the purposes is to potential changes that may needed to the Copyright Act current and relevant with the digital economy.

Issues we discussed include copyright small claims, removing the Copyright Office from the Library of Congress to provide it with more autonomy and control over its budget; orphan works; copyright registration; a pilot program for a an extended Collective licensing of images; the expansion of fair use and the use of framing images to circumvent licensing. We discussed issues and proposed solutions for nearly two hours.   I focused on strengthening licensing by easier registration; a copyright small claims court for more effective copyright enforcement and stopping the expansion of fair use and framing to uses that should be licensed.

It is not clear when any proposed legislation will be taken up. It would seem that making the Copyright office a stronger agency with autonomy would be a first step, as the Copyright Office could oversee any newly formed small claims dispute resolution, or other pilot programs.

The House Judiciary Committee is currently setting up a “Listening Tour” around the country to hear the views of photographers, illustrators, graphics artists, etc.  They are sending 12 representatives and 12 staffers for face-to-face conversations to discuss a variety of issues notedly small claims, fair use, and copyright modernization.

I will keep you posted on further developments.

Maria Pallante’s Testimony before the House Judiciary Committee

Maria Pallante is the current Register of Copyrights and Director of the United States Copyright Office. Her testimony today before the House Judiciary Committee was, as expected, full of ideas for modernization of the copyright office which she sees as a top priority.

Maria also suggests that various issues including Music Licensing, Small Claims, Felony Streaming, Orphan works, Resale Royalty, Section 108 reform, improvements for persons with print impairment, and presumptions regarding section 1201 exceptions, have been studied by the Office and are ripe for legislative action. Her testimony additionally identifies other issues where the Office will conduct further study, and issues as to which the Office suggests action is needed but must occur in the courts or by other means.

Her remarks also included the announcement of the creation of The U.S. Copyright Office Fair Use Index. This Fair Use Index is a project undertaken by the Office of the Register in support of the 2013 Joint Strategic Plan on Intellectual Property Enforcement of the Office of the Intellectual Property Enforcement Coordinator (IPEC). Fair use is a longstanding and vital aspect of American copyright law. The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).

You can access the entire testimony here.

Copyright Office Releases Report on Copyright Small Claims

By Nancy Wolff, Esq., PACA Counsel

On September 30, the Register of Copyrights at the United States Copyright Office published its report on Copyright Small Claims that it delivered to the House Committee on the Judiciary. The report is extensive and reflects the comments of many organizations, the results of public hearings in New York and Los Angeles, a review of legal issues and legislative recommendations. PACA actively participated and responded to three separate Copyright Office Notice of Inquiries addressing specific questions posed by the Copyright Office over the past two years, and participated in two full days of hearings at Columbia University held by the Copyright Office.

PACA strongly supported the study by the Copyright Office and believes that an alternative system is presently needed to ensure that the rights and remedies provided in our copyright regime are available to all copyright owners.

While PACA responded on behalf of its membership, we worked closely with an ad hoc committee of visual arts organizations, including the American Society of Media Photographers (ASMP); Graphic Artists Guild (GAG); Professional Photographer of America (PPA), National Press Photographers Association (NPPA), North American Nature Photography, Association (NANPA), and American Photographic Artists (APA). In general, we all support an alternative forum for claims of lesser economic value that provides fair, timely and economically affordable access to a legal forum.

I am pleased that our comments are reflected in this report and that many recommendations are included in legislative proposal.

While the report is available at the Copyright Office website, the website is currently down due to the closing of the federal government.

“The U.S. Copyright Office today released the findings of its two-year study on copyright small claims. The report documents the significant costs and other challenges of addressing copyright claims that have a relatively low economic value in the current federal system, and recommends the establishment of an alternative voluntary system of adjudication to be housed within the Copyright Office.

In a letter to the House Judiciary Committee, which requested the Report, Register of Copyrights Maria A. Pallante expressed appreciation for the many stakeholders who participated in the Office’s public process and noted the particularly acute impact of small claims issues with respect to individual creators.

For example, in formal comments to the Office, the American Photographic Artists wrote, “the current system deters authors from asserting their rights, renders these cases difficult for any attorney to take on, and encourages copyright infringement by all phases of society.” The Songwriters Guild of America stressed the combined impact of small claims on the livelihoods of individual creators, likening the challenges to “death by a thousand cuts.” Organizations that provide pro bono assistance to lower-income artists, such as California Lawyers for the Arts and the New York-based Volunteer Lawyers for the Arts, emphasized a pressing need for alternatives to federal litigation.

Although the Copyright Office recommends a streamlined approach for small claims, it also underscores that “alleged infringers must be allowed to defend themselves vigorously.” The Report cites the legitimate frustrations of those responding to such claims, who in some circumstances may themselves be smaller actors facing high litigation costs.

In sum, the Office makes the following recommendations:

• Congress should create a centralized tribunal within the Copyright Office, which would administer proceedings through online and teleconferencing facilities without the requirement of personal appearances. The tribunal would be staffed by three adjudicators, two of whom would have significant experience in copyright law – together having represented or presided over the interests of both owners and users of copyrighted works – with the third having a background in alternative dispute resolution.

• The tribunal would be a voluntary alternative to federal court. Its focus would be on small infringement cases valued at no more than $30,000 in damages. Copyright owners would be required to have registered their works or filed an application before bringing an action. They would be eligible to recover either actual or statutory damages up to the $30,000 cap, but statutory damages would be limited to $15,000 per work (or $7,500 for a work not registered by the normally applicable deadline for statutory damages).

• Claimants who initiated a proceeding would provide notice of the claim to responding parties, who would need to agree to the process, either through an opt-out mechanism or by affirmative written consent. Respondents would be permitted to assert all relevant defenses, including fair use, as well as limited counterclaims arising from the infringing conduct at issue. Certain DMCA-related matters relating to takedown notices, including claims of misrepresentation, could also be considered, and parties threatened with an infringement action could seek a declaration of noninfringement.

• Parties would provide written submissions and hearings would be conducted through telecommunications facilities. Proceedings would be streamlined, with limited discovery and no formal motion practice. A responding party’s agreement to cease infringing activity could be considered by the tribunal and reflected in its determination. The tribunal would retain the discretion to dismiss without prejudice any claim that it did not believe could fairly be adjudicated through the small claims process.

• Determinations of the small claims tribunal would be binding only with respect to the parties and claims at issue and would have no precedential effect. They would be subject to limited administrative review for error and could be challenged in federal district court for fraud, misconduct, or other improprieties. Final determinations could be filed in federal court, if necessary, to ensure their enforceability.”

http://www.pacaoffice.org/pdfs/usco-smallcopyrightclaims.pdf